Proposals to limit legal aid for judicial review will undermine the rule of law

QCs are concerned about the Ministry of Justice's plans to further restrict
legal aid for judicial review

SIR - The Government says that a fair justice system with “fair outcomes” is essential in our democratic society, and that legal aid is the “hallmark of a fair, open justice system”. In our justice system, judicial review is the means by which the courts restrain public bodies when they act unlawfully. Access to judicial review is therefore essential to the rule of law.

We are senior counsel who specialise in judicial review. We act for and against public bodies. We are gravely concerned that practical access to judicial review is now under threat. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 already severely limits legal aid for judicial review. The Government acknowledges that the scope for further savings is very small. Nevertheless, only eight days after LASPO came into force, the Ministry of Justice published proposals which would further remove legal aid for judicial review. These include refusing any legal aid to those who do not meet a residence test; refusing to pay lawyers in some cases for work reasonably and necessarily carried out; removing legal aid for complaints of mistreatment in prison; preventing small specialist public law firms from offering prison law advice; removing funding for test cases (whose prospects are by definition uncertain); and cutting rates for legal advice and representation still further.

The cumulative effect of these proposals will seriously undermine the rule of law, and Britain’s global reputation for justice. They are likely to drive conscientious and dedicated specialist public law practitioners and firms out of business. They will leave many of society’s most vulnerable people without access to any specialist legal advice and representation. In practice, these changes will immunise Government and other public authorities from effective legal challenge.

Abuses by UK agents and officials overseas that hitherto have been subject to the scrutiny of British courts will now, in practice attract impunity. People whose lives are affected by the unlawful action of public bodies will have no option but to try to represent themselves. Effective representation will be one-sided: the Government will continue to pay for, and be represented by specialist lawyers.

At the same time, the Ministry of Justice is proposing changes to criminal legal aid which will deny choice and effective representation to those accused of crimes, leading to a rapid and probably irreversible fall in standards of representation. We urge the Government to withdraw these unjust proposals.